Ms Jessica Whitlock v Zoom Recruitment Pty Ltd

[2024] FWC 2015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ms Jessica Whitlock
v

Zoom Recruitment Pty Ltd

(C2024/3415)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 30 JULY 2024

Section 365 application – jurisdictional objection dismissed.

This is an edited version of the decision I delivered on transcript today.

Ms Jessica Whitlock has made an application under s.365 of the Fair Work Act 2009 (Act). Zoom Recruitment Pty Ltd (Respondent) objected to the application on the basis that it did not dismiss Ms Whitlock. I accept that Ms Whitlock tendered her resignation from her employment with the Respondent in writing in her letter to Ms Lisa Giakalis and Mr Nathan Webb dated 30 April 2024 and that she gave 8 weeks’ notice, indicating that she would continue in her employment until 1 July 2024. By letter dated 13 May 2024, Mr Giakalis confirmed that the Respondent had accepted Ms Whitlock’s resignation. Further, this letter outlined “For the sake of clarity, your proposed hand over at a later date will not be necessary, and your employment with ZOOM concludes today, effective immediately.” In evidence, Ms Giakalis confirmed that the Respondent did not require Ms Whitlock to work until 1 July 2024, decided to bring forward the termination of Ms Whitlock and terminated her employment with immediate effect.

I have had regard to the submissions of the Respondent in relation to the 13 May 2024 letter but I consider that with this written correspondence, the Respondent dismissed Ms Whitlock from her employment with immediate effect. I therefore dismiss the jurisdictional objection that has been made by the Respondent. I am satisfied Ms Whitlock was dismissed and that she alleges that she was dismissed in contravention of the general protections provisions.

I indicated to the parties that I was prepared to proceed to conduct a conference to deal with the dispute pursuant to s.368 of the Act but the Respondent advised it was not inclined to participate. As such, the status of the matter will be reviewed in 7 days’ time.

DEPUTY PRESIDENT

Appearances:

G Guida for the Applicant.
J Monroe for the Respondent.

Hearing details:

2024.
Melbourne:
July 30.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Jessica Whitlock has lodged a complaint under section 365 of the Fair Work Act 2009 against Zoom Recruitment Pty Ltd, alleging she was dismissed in contravention of the general protections provisions. The Respondent, Zoom Recruitment Pty Ltd, has raised a jurisdictional objection, arguing that Ms Whitlock did not experience a dismissal because she tendered her resignation, which the Respondent accepted. The matter was heard before Deputy President Clancy in Melbourne on July 30, 2024.

The legal issue before the Deputy President was whether Ms Whitlock had been dismissed by Zoom Recruitment Pty Ltd, considering the circumstances of her resignation and the subsequent correspondence between the parties. Specifically, the court needed to determine if the Respondent's acceptance of Ms Whitlock's resignation and its subsequent communications amounted to a dismissal. The Respondent argued that Ms Whitlock's resignation was accepted, and her employment ended without any formal dismissal.

Deputy President Clancy found that Ms Whitlock had indeed tendered her resignation and provided notice, but the Respondent's subsequent letter dated May 13, 2024, indicated an immediate termination of her employment. Despite the Respondent's insistence that the termination was not a dismissal, the Deputy President concluded that the clear wording of the letter and the circumstances presented indicated an immediate dismissal. Consequently, the Deputy President dismissed the jurisdictional objection and confirmed that Ms Whitlock had been dismissed. The matter will be reviewed in seven days to determine the next steps in addressing the complaint.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established